What you need to know about pregnancy discrimination

Justice James Rika of the Employment and Labour Relations Court recently found that a bank had discriminated against a female employee by declaring her a non-performer and eventually terminating her contract.

The litigant convinced the court that the appraisal was done when she was invalid and absent from work because of pregnancy. The court awarded her compensation for pregnancy discrimination and unfair termination.

Pregnancy discrimination occurs when a pregnant female job applicant or employee, or one who has undergone delivery or has related complications, is subjected to unfavourable treatment with regard to hiring, deployment, retention, appraisal, transfer, demotion, promotion, termination, pay, leave or other benefits, based on her condition.

It is actually a form of gender-based economic violence targeting women because of their unique biological identity and reproductive functions.

Literature on this subject is clear that pregnancy discrimination constitutes unfair labour practice. This is why progressive nations legislate that expectant mothers be excluded from tasks that are strenuous or inimical to their health and safety and that of the unborn baby.

Kenya’s Employment Act, 2007, does this in a rather general way under Clause 91, that the minister in charge of labour should prescribe the “conditions of the employment of women … in any specified trade or occupation”.

Gender-related treaties Kenya is party to outlaw pregnancy discrimination. Article 11 (2) of the Convention on the Elimination of all Forms of Discrimination against Women, for example, states that “to prevent discrimination against women on the grounds of marriage or maternity… states parties shall take appropriate measures to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave”.

Pregnancy discrimination is also outlawed in Article 27(5) of the Constitution of Kenya and Article 5 (3) of the Employment Act. The latter expressly prohibits discrimination on several grounds, including that of pregnancy.

In Article 46 (a), it states that “a female employee’s pregnancy, or any reason connected with [it]” does “not constitute fair reasons for dismissal or for the imposition of a disciplinary penalty”.

Perpetuation

How pregnancy discrimination is perpetrated is described by Reginald Byron and Vincent Roscigno in the 2014 paper: ‘Relational power, legitimation, and pregnancy discrimination,’ which cites prior research highlighting that “employer stereotypes and financial interests leave pregnant women vulnerable to being fired.”

In this case, “employers symbolically vilified pregnant workers while simultaneously amplifying ostensibly meritocratic organisational procedures and concerns.”

The typical company that is obsessed with profit considers pregnant female employees a liability, notably because they are absent from work, are probably temporarily replaced by other paid staff or are less productive yet still earn their salaries. Such employers use unscrupulous methods to frustrate targeted staff.

These include forcing them to forfeit their annual leave, placing them on lower salaries and insisting that they cannot go on maternity leave less than two years after the last delivery, in effect planning their families.

Cases are known of female job applicants being asked whether they have small children or intend to do so, a devious way of showing attitudinal distaste for pregnancy.

That men are never asked such questions is a clear indicator of organisational conspiracy against women on the basis of maternity.

The video Men at Work illustrates this in a scene where an internal advertisement has been drafted to suit a male candidate.

When accosted by evidence that the female office secretary qualifies for the job, one panel member dismisses her on the basis that she has two small children and will be clock-watching and dashing off early from work.

Obviously, businesses should learn that maternity is a critical contributor to the national economy because it generates future labour and taxpayers.

Some industrialised nations are now facing a shortage of labour because of misguided population control measures that have resulted in distorted demographic pyramids that have resulted in inability to replenish their labour-force at an adequate rate.

Consequently, some have to rely on migrant labour and have introduced elaborate financial and material incentives for working mothers.

A good example of a pregnancy-responsive company is the East African Breweries Limited, which gives female employees six months of maternity leave and 26 weeks of paid leave for those who have lost their pregnancies.

Such women can grieve and recover adequately from trauma before resuming work. Staff treated with such empathy are likely to be loyal to the company and reciprocate through productivity.

Justice Rika’s ruling serves as a reminder that pregnancy discrimination has no place in modern society.

At a more general level, pregnancy should be treated as a national asset and even quantified in our national statistics, the same way unpaid domestic and care work should.

The writer is an international gender and development consultant and scholar ([email protected]).